Archives for January 2012

Is Workers’ Comp my only recourse if I’m hurt at work?

I get asked, on quite a regular basis, whether my client’s can recover for pain and suffering if they are injured in a workplace accident.  Unfortunately, the answer is usually no (99.9% of the time, we’ll leave the 0.01% for another day). One of the problems with workers’ comp is that an employee is generally  limited to receiving medical treatment for their injuries and 2/3 of their Average Weekly Wage (AWW) for the time they miss from work.

However, in exchange for giving up the right to seek pain and suffering, a worker is given (theoretically) a streamlined system in which benefits are paid quickly in an administrative setting, and the worker is not forced to go to court and prove that the employer was negligent.  The workers’ comp system is a no fault system in North Carolina, which means that the employee is entitled to benefits even if the employer was NOT negligent, so long as the employee suffered an injury by accident.

That being said, even though the employee may not recover for pain and suffering against their employer, there are instances where the employee may have the ability to sue other parties, or even sometimes, the employer.  Some examples include:

  1. Where the employee was injured due to the fault of some third party.  In other words, if the employee was injured while using a piece of equipment that was designed defectively, the employee could sue the manufacturer of the equipment and any party that was involved in the sale of that machinery.  These are known as “third-party claims”, and sometimes come up during the representation of Workers’ Comp clients.
  2. If the employee was injured at work, filed a workers’ comp claim, and was then let go by their employer, the injured worker may be able to file a Retaliatory Employment Discrimination Act (“REDA”) complaint with the NC Dept. of Labor.  Once you file a REDA complaint, the Dept. of Labor will investigate your claim.  If it has merit, the Dept. may take a number of actions, including suing the employer on your behalf or issuing a right-to-sue letter so that you may sue your employer.  If successful, you may be entitled to triple the amount of wages you lost as a result of the employer’s actions, as well as payment for your attorney’s fees.

 

Is my injury covered by Workers’ Comp?

How do I know if my injury should be covered by Workers’ Comp?  Whether your injury should be covered, or actually is covered, are two different questions. If the system worked the way it was supposed to, I wouldn’t have a job, and the insurance companies would do what they should in every case. But this isn’t fantasy land, it is real life.  Here are the type of injuries that SHOULD be covered by Workers’ Comp in North Carolina:

  1. Injuries by accident, arising out of and in the course of employment. If however, you are engaging in your “normal work routine” when you are injured, the injury may not be compensable.
  2. Back Injuries as a result of a specific traumatic incident are also considered compensable.
  3. Occupational Diseases are considered compensable.  NC Statute 97-53 sets out 27 specific diseases which are compensable.  In order to recover for an occupational disease claim, you must be diagnosed with a covered disease, and the disease must have been attributed to your employment.
There are many instances where a worker is injured in the normal scope of his or her employment, and thus has not suffered an “injury by accident“.  Oftentimes, in these cases the employer/insurance company will deny the claim.  However, it is important to review your medical records and determine whether you have also suffered an occupational disease or back injury as a result of a specific traumatic incident, in which case your claim may very well be compensable.
Any variation from the normal, regular work routine may be sufficient to constitute an “accident” at the workplace.  These cases can become very fact-intensive, and the only way to know for sure whether your claim is compensable is to consult a Workers’ Comp Attorney for an initial consultation.  Please feel free to call our office at 919-460-5422 if you have any questions regarding whether you have suffered a compensable claim.